Sean Nee v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice O'Malley
• Judgment Date: 29 October 2013
• Neutral Citation: [2013] IEHC 584
• Court: High Court
• Date: 29 October 2013

[2013] IEHC 584

THE HIGH COURT

NO. 878 JR/[2011]

Nee v Bord Pleanala

JUDICIAL REVIEW

BETWEEN

SEAN NEE

APPLICANT

AND

AN BORD PLEANALA

RESPONDENT

AND

THE COUNTY COUNCIL OF GALWAY AND PETER MEAGHER

NOTICE PARTIES

PLANNING & DEVELOPMENT ACT 2003 S37(2)

MCINERNEY HOMES, IN RE UNREP SUPREME 22.7.2011 2011 IESC 31

PAULIN v PAULIN 2010 1 WLR 1057

BYRNE v JUDGES OF THE CIRCUIT COURT & DPP UNREP HOGAN 5.9.2013 2013 IEHC 396

PRACTICE AND PROCEDURE

Judgment

Application to revisit decision - Factual error in setting out reasons for decision -Consequences of factual error - Whether factual error by court - Whether error sole and exclusive basis for finding - Jurisdiction to re-open case after judgment - Right of access to justice - Judicial review proceedings to quash decision to grant planning permission - Matter remitted for reconsideration - Material contravention of development plan - In Re McInerney Homes Ltd & Companies (Amendment) Act 1990 [2011] IESC 31, (Unrep, SC, 22/7/2011); Paulin v Paulin [2009] EWCA Civ 221, [2010] 1WLR 1057 and Byrne v Judges of the Circuit Court [2013] IEHC 396, (Unrep, Hogan J, 5/9/2013) considered - Planning and Development Act 2000 (No 30), s 37(2) - Application refused (2011/878JR - O'Malley J - 29/10/2013) [2013] IEHC 584

Nee v An Bord Pleanála

Facts: The applicant sought to re-open a decision of the Court in respect of a challenge by judicial review to quash a decision of the respondent by reason of error. The applicant alleged that the Court had been misinformed that a matter had been considered by the Council. It was alleged that an error uncovered was central to the determination of the issue and that the Court had jurisdiction to consider it where no final order had been made. It was argued that to refrain from doing so would breach the applicant”s right of access to justice.

Held by O”Malley J. that re-opening the hearing would not be an appropriate course of action. The discovery on the issue of error did not warrant the re-opening of the proceedings.

Introduction

1 This judgment deals with an issue arising from the judgment refusing the reliefs sought by the applicant delivered on the 12 ^th November, 2012, concerning a factual error made by the court in setting out the reasons for the decision arrived at. The applicant says that the error is such as to require the court to revisit the decision.

2 To put the issue in context it is necessary to set out a brief summary of the history of the case.

3 In July 2009 the second notice party applied to the first notice party for planning permission in respect of the site in question. The applicant in these proceedings objected. Permission was refused on a number of grounds. The summary of "main reasons and considerations" for the decision stated that

"The proposed development has been assessed, within the restrictions imposed by the principles of proper planning and sustainable development and having regard to the policies and objectives of Galway County Council as set out in the 2009-2015 Development Plan. Based on this assessment it is considered that the proposed development would be contrary to the proper planning and sustainable development of the area and would be contrary to the objectives and policies as set out in the County Development Plan."

4 Five specific reasons were given for the refusal. One was that the proposed development was located in a Class 4 rural landscape, where housing needs were restricted to essential residential needs of local households and family farm business. It was considered that the applicant, who wished to rebuild a cottage as a holiday home, had not "fully demonstrated" the necessary intrinsic links to build a house in the area.

5 Permission having been refused, the first notice party appealed to the respondent Board. The Board's inspector made a negative recommendation on specific grounds although considering that the proposal accorded with "the principles of the policies" of the Development Plan. The appeal was nonetheless successful, but the grant of permission by the Board was set aside in judicial review proceedings because the objector had not been notified of the appeal. No other issue was decided in those proceedings but it is necessary to note that it had been pleaded on behalf of the applicant that the Board was not entitled to grant permission in circumstances where, on the applicant's case, the planning authority had refused permission because the development would constitute a material contravention of the Development Plan. Section 37(2) of the Planning and Development Act, 2003 significantly affects the Board's power to grant permission on appeal from a refusal based on this ground.

6 The matter was remitted to the Board for reconsideration. This sequence of events is correctly set out at paragraph 13 of the judgment.

7 Again, the proposed development was the subject of a negative report, from a different inspector. It should be noted here that this inspector considered the question whether the refusal of permission by the Council had been on foot of a finding of a material contravention of the Plan. His view was that the Council "clearly did not decide to refuse the proposal because it materially contravened the provisions of its Development Plan." In this regard he noted the conclusion that the applicant had not "fully demonstrated intrinsic links to build a house within this area". He noted that the proposal did not contravene any specific objective of the Plan, and that while it might be said to contradict a number of policies in the Plan there were other policies which could be relied upon to support it. He also asserted that

"when due regard is had to the pattern of development in this area and to the extent of permissions that have been given by the planning authority in recent years (notably over the life-time of the last Plan as the current Plan is relatively recently adopted), it is reasonable to conclude that this could be another reason why the Board would not be restricted in its determination by Section 37(2)(b)."

8 It was noted in the judgment that there was no evidence before the court in relation the pattern of development and permissions given.

9 The second notice party was again successful in obtaining permission from the Board, albeit with a number of conditions attached. The applicant then sought relief by way of judicial review with a view to quashing this decision.

10 At the hearing of the judicial review proceedings, several issues were canvassed, of which the power of the Board to grant permission having regard to s. 37(2) of the Planning and Development Act, 2003 was one. The subsection provides as follows:

2 2 S.37 (2)(a):- subject to paragraph (b), the Board may in determining an appeal under this section decide to grant a permission even if the proposed development contravenes materially the development plan relating to the area of the planning authority to whose decision the...